State records committee orders San Juan County to go after documents held by Democratic commissioners’ private attorney

(Rick Egan | Tribune file photo) Kenneth Maryboy and Willie Grayeyes thank their supporters, after being sworn in to the San Juan County Commission, at the San Juan County Courthouse in Monticello, Monday, Jan. 7, 2019.

Members of the Utah State Records Committee were openly perplexed Thursday at how to proceed with a request for records related to the designation of the Bears Ears National Monument and last year’s historic election of two Navajo Democrats to the San Juan County Commission.

San Juan County Attorney Kendall Laws argued that his office had complied to the best of its ability with an open records request by freelance journalist Bill Keshlear under Utah’s Government Records Access and Management Act, or GRAMA.

But Laws added that there may or may not be additional records that would qualify as public under the law, but which are being withheld by a lawyer who privately advises the two new county commissioners, Kenneth Maryboy and Willie Grayeyes, and who claims attorney-client privilege.

“The county is not in a position to even classify whether they qualify as a record because we haven’t seen them,” Laws said. "We have not been granted access to those either."

The committee ultimately ruled unanimously in favor of Keshlear’s appeal against the county, ordering Laws to obtain the records in order to appropriately determine whether they are public or private.

But committee members also noted that their actions may only serve as an internal precedent or supporting evidence for future litigation, as Keshlear and Laws were effectively on the same side of the issue in seeking information from Colorado-based attorney Steven Boos, who was not present at Thursday’s hearing.

“I don’t think there’s any reason to believe that just because we make an order and [Laws] passes the order on, that there’s going to be compliance,” records committee member David Fleming said. “But at least we’ve made a decision that’s consistent with the statute.”

Committee member Cindi Mansell, the Salt Lake City recorder, commented that Boos and the county commissioners may have discovered a “clever” way to circumvent the state’s open records law.

“It’s scary,” she said.

In February, Keshlear requested copies of correspondence and draft materials related to a series of resolutions passed by the San Juan County Commission after the election of Maryboy and Grayeyes, which ended decades of white Republican control in the county by seating a two-person Democratic, and Navajo, majority.

But in responding to Keshlear’s request, county officials provided only the resolutions themselves, which had already been approved during public commission meetings.

Keshlear appealed, seeking additional materials, with the county’s chief administrative officer responding that no other records were available. The next day, Laws said, county officials received an emailed letter from Boos and addressed to Maryboy and Grayeyes stating that Boos had authored the county resolutions and that his documents and communications were protected under attorney-client privilege.

“On its face, the letter that was received from that outside attorney would indicate that there are other documents out there,” Laws said.

During his presentation to the committee on Thursday, Keshlear said the secrecy surrounding the commission’s post-election actions has fueled conspiracy theories and accusations of “fake news” against journalists attempting to cover the changing county stances.

“The public almost certainly will never know the complete story unless the committee grants this or similar appeals,” he said.

Keshlear, in a 6,000-word article recently published in the Canyon Country Zephyr, described Boos as “a symbolic lightning rod to many county residents, the personification of an outsider with designs on remaking their way of life.”

His piece quoted one local resident describing what is happening in San Juan County as “tyranny,” and also quoted a local blogger’s description of Boos as “the puppet master over Maryboy and Grayeyes” in a conspiracy.

At one point during Thursday’s hearing, committee member Patricia Smith-Mansfield suggested the county has a problem with its records management practices. She said the period of time included in Keshlear’s request includes a number of significant county issues, and that it’s important records be maintained for the purpose of both history and transparency.

“Just because something might — might — have attorney-client privilege does not mean the governmental entity does not have the responsibility to go through it as a record and maintain it as a record,” she said.

Laws responded that the county lacks a mechanism to maintain records of communication made on personal email accounts, or with private representation.

“There’s nothing more that the county entity can do at this point that we haven’t already done,” he said.

Boos told The Tribune on Thursday that he would review the order of the records committee, once it is formally issued, but he would not confirm whether or not additional records exist and maintained that any such records would fall, generally, under the protections of attorney-client privilege.

“I will look at the county attorney’s request when I receive it,” he said, “and I will consult with attorneys in my office and elsewhere about what the proper and ethical course of action is at that point.”

He emphasized that he does not represent the county, and that his work with Maryboy and Grayeyes does not fall under the auspices of official county business. He compared his role to that of former New York City Mayor Rudy Giuliani, who now works as a private attorney for President Donald Trump.

“I would imagine that Mr. Giuliani advises Mr. Trump on a wide range of issues concerning the governance of the nation,” Boos said. “That does not make him a government attorney.”

After the hearing, Laws said his approach will depend on the specific wording of the records committee order. He said it’s unclear whether the county could or would pursue litigation against Boos if their requests for additional records are denied, or what consequences the county could face if a denial by Boos makes Laws unable to comply with the records committee’s ruling.

“We turned over everything that we had,” Laws said. “It is a unique situation because it didn’t come down to classification of documents.”

Keshlear told The Tribune he was unclear what the committee’s ruling means for his request for records. He said it’s up to the new San Juan County commissioners and their private attorney whether they’ll comply with the ruling or whether they’ll give him, the county attorney and the records committee “the big old Bronx Cheer.”

He also would not rule out taking the matter to district court, if necessary.